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Wednesday, August 2, 2017

New Declassified Memo Details Extreme Police State Tactics Used By Obama Administration

The National Security Agency and FBI violated specific civil
liberty protections during the Obama administration by improperly
searching and disseminating raw intelligence on Americans or failing to
promptly delete unauthorized intercepts, according to newly declassified
memos that provide some of the richest detail to date on the spy
agencies’ ability to obey their own rules.

The memos reviewed by The Hill were publicly
released on July 11 through Freedom of Information Act litigation by the
American Civil Liberties Union.

They detail specific violations that the NSA or FBI disclosed
to the Foreign Intelligence Surveillance Court or the Justice
Department’s national security division during President Obama’s tenure
between 2009 and 2016.

The intelligence community isn’t due to report on
compliance issues for 2017, the first year under the Trump
administration, until next spring.

The NSA says that the missteps amount to a small number
— less than 1 percent — when compared to the hundreds of thousands of
specific phone numbers and email addresses the agencies intercepted
through the so-called Section 702 warrantless spying program created by
Congress in late 2008.

“Quite simply, a compliance program that never finds an
incident is not a robust compliance program,” said Michael Halbig,
the NSA’s chief spokesman. “The National Security Agency has in place a
strong compliance program that identifies incidents, reports them to
external overseers, and then develops appropriate solutions to remedy
any incidents.”

But critics say the memos undercut the
intelligence community’s claim that it has robust protections for
Americans incidentally intercepted under the program.

Americans should be alarmed that the NSA is vacuuming up their emails and phone calls without a warrant,” said Patrick Toomey,
an ACLU staff attorney in New York who helped pursue the FOIA
litigation.

“The NSA claims it has rules to protect our privacy, but it
turns out those rules are weak, full of loopholes, and violated again
and again.”

Section 702 empowers the NSA to spy on foreign powers and to
retain and use certain intercepted data that was incidentally collected
on Americans under strict privacy protections.

Wrongly collected
information is supposed to be immediately destroyed.

The Hill reviewed the new ACLU documents as well as
compliance memos released by the NSA inspector general and identified
more than 90 incidents where violations specifically cited an impact on
Americans.

For instance, the government admitted improperly searching
the NSA’s foreign intercept data on multiple occasions, including one
instance in which an analyst ran the same search query about an American
“every work day” for a period between 2013 and 2014.

There also were several instances in which Americans’
unmasked names were improperly shared inside the intelligence community
without being redacted, a violation of the so-called minimization
procedures that Obama loosened in 2011 that are supposed to protect
Americans’ identity from disclosure when they are intercepted without a
warrant.

Numerous times improperly unmasked information about Americans
had to be recalled and purged after the fact, the memos stated.

“CIA and FBI received unminimized data from many Section
702-tasked facilities and at times are thus required to conduct similar
purges,” one report noted.

“NSA issued a report which included the name of a United
States person whose identity was not foreign intelligence,” said one
typical incident report from 2015, which said the NSA eventually
discovered the error and “recalled” the information.

Likewise, the FBI disclosed three instances between December
2013 and February 2014 of “improper disseminations of U.S. persons
identities.”

The NSA also admitted it was slow in some cases to
notify fellow intelligence agencies when it wrongly disseminated
information about Americans. The law requires a notification within five days, but some took as long as 131 business days and the average was 19 days, the memos show.

U.S.
intelligence officials directly familiar with the violations told The
Hill that the memos confirm that the intelligence agencies have
routinely policed, fixed and self-disclosed to the nation's intelligence
court thousands of minor procedural and more serious privacy
infractions that have impacted both Americans and foreigners alike since
the warrantless spying program was created by Congress in late 2008.

Alexander
Joel, who leads the Office of Civil Liberties, Privacy and Transparency
under the director of national intelligence, said the documents
chronicle episodes that have been reported to Congress and the Foreign
Intelligence Surveillance Court for years in real time and are a tribute
to the multiple layers of oversight inside the intelligence community.

The memos reviewed by The Hill
were publicly released on July 11 through Freedom of Information Act
litigation by the American Civil Liberties Union.

They detail
specific violations that the NSA or FBI disclosed to the Foreign
Intelligence Surveillance Court or the Justice Department's national
security division during President Obama’s tenure between 2009 and 2016.

The intelligence community isn't due to report on compliance issues for
2017, the first year under the Trump administration, until next spring.

The
NSA says that the missteps amount to a small number — less than 1
percent — when compared to the hundreds of thousands of specific phone
numbers and email addresses the agencies intercepted through
the so-called Section 702 warrantless spying program created by Congress
in late 2008.

“Quite simply, a compliance program that never finds an
incident is not a robust compliance program,” said Michael Halbig,
the NSA’s chief spokesman. “The National Security Agency has in place a
strong compliance program that identifies incidents, reports them to
external overseers, and then develops appropriate solutions to remedy
any incidents.”

But critics say the memos undercut the
intelligence community’s claim that it has robust protections for
Americans incidentally intercepted under the program.

“Americans should be alarmed that the NSA is vacuuming up their emails and phone calls without a warrant,” said Patrick Toomey,
an ACLU staff attorney in New York who helped pursue the FOIA
litigation. “The NSA claims it has rules to protect our privacy, but it
turns out those rules are weak, full of loopholes, and violated again
and again.”

Section 702 empowers the NSA to spy on foreign powers
and to retain and use certain intercepted data that was incidentally
collected on Americans under strict privacy protections. Wrongly
collected information is supposed to be immediately destroyed.

The
Hill reviewed the new ACLU documents as well as compliance memos
released by the NSA inspector general and identified more than 90
incidents where violations specifically cited an impact on Americans.
Many incidents involved multiple persons, multiple violations or
extended periods of time.

For instance, the government admitted
improperly searching the NSA’s foreign intercept data on multiple
occasions, including one instance in which an analyst ran the same
search query about an American “every work day” for a period between
2013 and 2014.

There also were several instances in which
Americans’ unmasked names were improperly shared inside the intelligence
community without being redacted, a violation of the so-called
minimization procedures that Obama loosened in 2011 that are supposed to
protect Americans' identity from disclosure when they are intercepted
without a warrant.

Numerous times improperly unmasked information about
Americans had to be recalled and purged after the fact, the memos
stated.

“CIA and FBI received unminimized data from many Section
702-tasked facilities and at times are thus required to conduct similar
purges,” one report noted.

“NSA issued a report which included the
name of a United States person whose identity was not foreign
intelligence,” said one typical incident report from 2015, which said
the NSA eventually discovered the error and “recalled” the information.

Likewise,
the FBI disclosed three instances between December 2013 and February
2014 of “improper disseminations of U.S. persons identities.”

The NSA also
admitted it was slow in some cases to notify fellow intelligence
agencies when it wrongly disseminated information about Americans.

The
law requires a notification within five days, but some took as long as 131 business days and the average was 19 days, the memos show.

U.S.
intelligence officials directly familiar with the violations told The
Hill that the memos confirm that the intelligence agencies have
routinely policed, fixed and self-disclosed to the nation's intelligence
court thousands of minor procedural and more serious privacy
infractions that have impacted both Americans and foreigners alike since
the warrantless spying program was created by Congress in late 2008.

Alexander
Joel, who leads the Office of Civil Liberties, Privacy and Transparency
under the director of national intelligence, said the documents
chronicle episodes that have been reported to Congress and the Foreign
Intelligence Surveillance Court for years in real time and are a tribute
to the multiple layers of oversight inside the intelligence community.

We
take every compliance incident very seriously and continually strive to
improve compliance through our oversight regime and as evidence by our
reporting requirements to the FISC and Congress,” he told The Hill.
“That said, we believe that, particularly when compared with the overall
level of activity, the compliance incident rate is very low.”

The
FBI said it believes it has adequate oversight to protect Americans'
privacy, while signaling it will be pushing Congress hard this fall to
renew the Section 702 law before it expires.

"The
FBI’s mission is to protect the American people and uphold the
Constitution of the United States," the bureau said in a statement to
The Hill.

"When Congress enacted Section 702, it built in comprehensive
oversight and compliance procedures that involve all three branches of
government.

These procedures are robust and effective in identifying
compliance incidents. The documents released on July 11, 2017 clearly
show the FBI’s extensive efforts to follow the law, and to identify,
report, and remedy compliance matters.

"Section 702 is vital to
the safety and security of the American people. It is one of the most
valuable tools the Intelligence Community has, and therefore, is used
with the utmost care by the men and women of the FBI so as to not
jeopardize future utility.

As such, we continually evaluate our internal
policies and procedures to further reduce the number of these
compliance matters."

The new documents show that the NSA has, on
occasion, exempted itself from its legal obligation to destroy all
domestic communications that were improperly intercepted.

Under
the law, the NSA is supposed to destroy any intercept if it determines
the data was domestically gathered, meaning someone was intercepted on
U.S. soil without a warrant when the agency thought they were still
overseas.

The NSA, however, has said previously it created “destruction
waivers” to keep such intercepts in certain cases.

The new
documents confirm the NSA has in fact issued such waivers and that it
uncovered in 2012 a significant violation in which the waivers were
improperly used and the infraction was slow to be reported to the court.

“In
light of related filings being presented to the Court at the same time
this incident was discovered and the significance of the incident, DOJ
should have reported this incident under the our immediate notification
process,” then Assistant Attorney General Lisa Monaco wrote the FISA
court in Aug. 28, 2012, about the episode, according to one memo
released through FOIA.

The NSA declined to say how often
destruction waivers are given. But Joel, of the Office of the Director
of National Intelligence, said the Foreign Intelligence Surveillance
Court has supervised such waivers and affirmed they are “consistent with
the Fourth Amendment of the Constitution and the statutory requirements
of Section 702.”

Other violations cited in the memos:

Numerous
“over collection incidents” in which the NSA gathered information about
foreigners or Americans it wasn’t entitled to intercept

“Isolated
instances in which NSA may not have complied with the documentation
requests” justifying intercepts or searches of intercepted data.

The misuse of “overly broad” queries or specific U.S. person terms to search through NSA data.

Failures
to timely purge NSA databases of improperly collected intelligence,
such as a 2014 incident in which “NSA reported a gap in its purge
discovery processes.”

In annual and quarterly compliance
reports that have been released in recent years, U.S. intelligence
agencies have estimated the number of Section 702 violations has
averaged between 0.3 percent and 0.6 percent of the total number of
“taskings.”

A tasking is an intelligence term that reflects a request to
intercept a specific phone number or email address.

The NSA now
targets more than 100,000 individuals a year under Section 702 for
foreign spying, and some individual targets get multiple taskings,
officials said.

“The actual number of compliance incidents remains
classified but from the publicly available data it is irrefutable that
the number is in the thousands since Section 702 was fully implemented
by 2009,” said a senior U.S. official with direct knowledge, who spoke
only on condition of anonymity.

The increasing transparency on
Section 702 violations is having an impact on both critics and
supporters of a law that is up for renewal in Congress at the end of
this year.

Of concern are the instances in which Americans’ data is
incidentally collected and then misused.

Retired House
Intelligence Committee Chairman Pete Hoekstra, a Republican who strongly
supported the NSA warrantless spying program when it started under
President George W. Bush, said he now fears it has now become too big
and intrusive.

“If I were still in Congress today, I might vote
with the people today to shut the program down or curtail it,” Hoekstra,
who has been tapped by Trump to be ambassador to the Netherlands, said
in an interview.

“One percent or less sounds great, but the truth
is 1 percent of my credit card charges don’t come back wrong every
month. And in my mind one percent is pretty sloppy when it can impact
Americans’ privacy.”

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